Holding

Section 83(1) of the Waqf Act, 1995 gives the Waqf Tribunal exclusive jurisdiction over any dispute, question or other matter relating to a waqf or waqf property, and the bar in Section 85 precludes civil courts from entertaining such suits even when the property is admitted to be a waqf.

Summary

The plaintiff filed a suit in a civil court seeking permanent and mandatory injunctions to protect his possession of a piece of land that was admitted to be a waqf property. The defendant, who also admitted the waqf status, moved to dismiss the suit on the ground that under the Waqf Act, 1995, such disputes must be decided by the Waqf Tribunal and civil courts are barred by Section 85. The trial court and the first appellate court dismissed the suit, but the High Court reversed the decision, holding that the civil court could entertain the injunction claim. The Supreme Court examined the language of Sections 83 and 85, held that they confer exclusive jurisdiction on the Waqf Tribunal for any dispute relating to a waqf or waqf property, and that the bar of jurisdiction under Section 85 is comprehensive even when the property is admitted to be a waqf. The Court also noted that the 2013 amendment expanded the Tribunal’s jurisdiction and that special provisions in Sections 86, 90 and 93 do not apply to the present suit. Consequently, the appeal was allowed, the High Court judgment set aside, and the trial court directed to return the plaint to the plaintiff for presentation before the appropriate Waqf Tribunal.

Issues considered

Whether a civil court has jurisdiction to entertain a suit for permanent injunction concerning an admitted waqf property under the Waqf Act, 1995.
Interpretation of Section 83(1) and the bar of jurisdiction in Section 85 of the Waqf Act, 1995.
Effect of Amendment Act 27 of 2013 on the jurisdiction of the Waqf Tribunal and the bar under Section 85.
Whether the question of the plaintiff’s status as a beneficiary of the waqf falls within the Tribunal’s jurisdiction.
Whether special provisions in Sections 86, 90 and 93 create any exception to the bar of jurisdiction for civil courts.

Legislation cited

Amendment Act 27 of 2013 (to the Waqf Act, 1995)
Code of Civil Procedure, 1908s. Order 39 Rule 1
Mussalman Waqf Act, 1923
Mussalman Waqf Validating Act, 1913
Waqf Act, 1954
Waqf Act, 1995s. 55, s. 55C, s. 55D, s. 6, s. 68(6), s. 7, s. 83, s. 85, s. 86, s. 89, s. 90, s. 93, s. 94

Subjects

waqfjurisdictionWaqf Tribunalcivil courtpermanent injunctionSection 83Section 85Amendment Act 27 of 2013bar of jurisdictionWaqf Act 1995

Judgment

[2021] 13 S.C.R.1 1

RASHID WALI BEG A
v.
FARID PINDARI & ORS.
(Civil Appeal No. 6336 of 2021)
OCTOBER 28, 2021 B
[HEMANT GUPTA AND V. RAMASUBRAMANIAN, JJ.]
Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act
27 of 2013 – Suit for permanent injunction in respect of a waqf
property filed before civil court, if maintainable – Held: Words in
s.83(1) “any dispute, question or other matter relating to a waqf or C
waqf property” cover any dispute, question or other matter relating
to a waqf property – Court cannot do violence to the express
language of the statute – s.83(1) even as it stood before the
amendment, provided for the determination by the Waqf Tribunal,
of any dispute, question or other matter relating to a waqf and a
waqf property – Therefore, to say that the Tribunal will have D
jurisdiction only if the subject property is disputed to be a waqf
property and not if it is admitted to be a waqf property, is indigestible
in the teeth of s.83(1) – Dichotomy created in some decisions of
Supreme Court, between the properties admitted to be waqf
properties and disputed to be so, is on account of the misapplication E
of the two limited questions in ss.6(1) and 7(1) to the whole of the
Act including s.83 – In the present case, the property is admittedly
a waqf property – To allow the respondent-plaintiff to ignore the
Waqf Tribunal and to seek a decree of permanent and mandatory
injunction from a civil court, would be to ignore the mandate of
ss.83 and 85 – Approach of the High Court not in tune with the law F
laid down by Supreme Court – Further, a question as to the nature
of the waqf and whether the plaintiff is a beneficiary of the waqf,
has also arisen in this case which question has necessarily to be
decided by the Tribunal and not the civil court – Trial court to return
the plaint to the plaintiff, for presentation to the jurisdictional Waqf G
Tribunal – Judgment of High Court set aside – Code of Civil
Procedure, 1908 – Or.39, r.1 – Mussalman Waqf Validating Act,
1913 – Mussalman Waqf Act 1923 – Waqf Act 1954.
Waqf Act, 1995 – ss.85, 86, 89 and 90 – Bar of jurisdiction
u/s.85 – Held: The 1995 Act makes a specific reference to court/
H
1
2 SUPREME COURT REPORTS [2021] 13 S.C.R.

A civil Court also in certain places – ss.86, 90 and 93 make specific
reference to “Court” – s.68(6) goes a step further by making a
reference to ‘civil court’ – A cumulative reading of ss.86, 89 and 90
shows that the bar of jurisdiction u/s.85 is not total and omnipotent
and there may be cases which could still be entertained by civil
courts.
B
Waqf Act, 1995 – ss.83, 85, as amended by Amendment Act
27 of 2013 – Held: Act 27 of 2013 did 2 things – First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant
disputes and the rights and obligations of lessor and lessee –
Second, it enlarged the bar of jurisdiction, to cover even revenue
C courts and other authorities.
Waqf Act, 1995 – ss.6(1), 7(1) – Held: By Act 27 of 2013 the
words, “any person interested” were substituted by the words, “any
person aggrieved”, meaning thereby that even a non Muslim is
entitled to invoke the jurisdiction of the Tribunal – Due to the
D substitution of the words “any person aggrieved”, Act 27 of 2013
has deleted the Explanation u/s.6(1).
Waqf Act, 1995 – ss.83, 85 and 86 – Special provision u/s.86
– Held: Dehors the jurisdiction conferred upon the Tribunal
u/s.83(1) and dehors the bar of jurisdiction of the civil court, revenue
E court and any other authority u/s.85, the 1995 Act contains a special
provision in s.86 for the appointment by the civil court, of a Receiver,
in certain cases – It is clear from s.86, that in suits or other
proceedings instituted by the Board falling u/clause (a) or those
instituted by the mutawalli falling u/clause (b) of s.86, the civil court
F will have jurisdiction to appoint a receiver – As a corollary, the bar
u/s.85 will have no application to cases covered by s.86.
Waqf Act, 1995 – ss.83, 85, 86, 90 and 93 – Question of bar
of jurisdiction of the civil court – Determination of – Held: In view
of the language employed in ss.83 and 85, coupled with the reference
G to civil courts in ss.86, 90 and 93, it appears that the question of
bar of jurisdiction of the civil court, has been left by the law makers
to the vagaries of judicial opinion and this has given rise to
conflicting decisions.
Waqf Act, 1995 – s.83 – Code of Civil Procedure, 1908 –
Or.39, r.1 – Held: s.83(5) makes it clear that the Waqf Tribunal
H
RASHID WALI BEG v. FARID PINDARI & ORS. 3

shall be deemed to be a Civil Court and shall have the same powers A
as may be exercised by a Civil Court under the CPC, while trying a
suit or executing a decree or order – The Tribunal will have power
to issue temporary injunctions u/Or. 39, r.1, CPC.
Waqf Act, 1995 – ss.6, 7 and 85 – Held: A conjoint reading
of ss.6, 7 and 85 would show that the bar of jurisdiction of civil B
court contained in s.6(5) and s.7(2) is confined to Chapter-II, but
the bar of jurisdiction u/s.85 is all pervasive – Distinguishing
features enumerated.
Words & Phrases – “any dispute, question or other matter
relating to a waqf or waqf property” in s.83(1) – Discussed – Waqf C
Act, 1995.
Allowing the appeal, the Court
HELD: 1.1 The words “eviction of tenant or determination
of rights and obligations of the lessor and the lessee of such property”
were inserted in sub-section (1) of Section 83, after the words D
“waqf property”, by Amendment Act 27 of 2013. Similarly, the
words, “civil court” were substituted by the words “civil court,
revenue court and other authority”, in Section 85, by Amendment
Act 27 of 2013. Thus, Act 27 of 2013 did 2 things. First it expanded
the jurisdiction of Waqf Tribunal even to cover landlord-tenant E
disputes and the rights and obligations of lessor and lessee.
Second, the Amendment Act enlarged the bar of jurisdiction, to
cover even revenue courts and other authorities. Sub-section
(2) of Section 83 of the 1995 Act indicates the persons who are
entitled to invoke the jurisdiction of the Tribunal. They are, (i)
any mutawalli of the waqf; (ii) a person interested in the waqf; or F
(iii) any other person aggrieved by any order made under the Act
or Rules or any order made there under. [Paras 17-20][20-F-H;
21-A-B]
1.2 Dehors the jurisdiction conferred upon the Tribunal
under Section 83(1) and dehors the bar of jurisdiction of the civil G
court, revenue court and any other authority under Section 85,
the 1995 Act contains a special provision in Section 86 for the
appointment by the civil court, of a Receiver, in certain cases.
Section 86 thus recognises the right of the Board to institute or
commence any suit or other legal proceeding, (i) to set aside the
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4 SUPREME COURT REPORTS [2021] 13 S.C.R.

A sale of a waqf property in execution of a decree of civil court;
(ii) to set aside the transfer of any waqf property made by the
mutawalli, without the sanction of the Board or otherwise than
in accordance with the sanction of the Board; and (iii) to recover
and restore possession of such property to the mutawalli. Clause
(b) of Section 86 recognises a similar right for the mutawalli to
B
recover possession of waqf property, which has been transferred
by the previous mutawalli or any other person without the sanction
of the Board. It is therefore clear from Section 86, that in suits or
other proceedings instituted by the Board falling under clause
(a) or those instituted by the mutawalli falling under clause (b) of
C Section 86, the civil court will have jurisdiction to appoint a
receiver. As a corollary, the bar under Section 85 will have no
application to cases covered by Section 86. Apart from the bar of
jurisdiction of civil courts under Section 85, the Act envisages
yet another bar under Section 88. Section 88 excludes the
jurisdiction of a civil court to entertain a challenge to any
D
notification or order or decision made, proceeding or action taken
by the Central Government or the State Government under the
Act. [Paras 21-24][21-C; 22-B-F]
1.3 Section 89 of the Waqf Act, 1995 contains a rule similar
to Section 80 CPC, in respect of suits instituted against the Board.
E Section 90 which regulates the procedure for the issue of notice
of suits, refers both to courts and tribunals. Sub-section (1) of
Section 90 uses the words, “the court or Tribunal” and it refers
to suit or proceeding relating to title to or possession of a waqf
property or the right of the mutawalli or beneficiary. A cumulative
F reading of Sections 86, 89 and 90 would show that the bar of
jurisdiction under Section 85 is not total and omnipotent and that
there may be cases which could still be entertained by civil courts.
In fact, Section 93 which prohibits the mutawalli from entering
into a compromise with the opposite party in any suit, also refers
to “court”. [Paras 25-27][22-G-H; 23-E-F]
G
1.4 Section 83(2) specifically enables, (i) any mutawalli; (ii)
any person interested in a waqf; and (iii) any other person
aggrieved by an order made under the Act, to invoke the
jurisdiction of the Tribunal for the determination of any dispute,
question or other matter relating to the waqf. Section 83(2) does
H
RASHID WALI BEG v. FARID PINDARI & ORS. 5

not make any reference to the Waqf Board. However, Section A
94(1) enables the Board to apply to the Tribunal, for appropriate
orders, whenever a mutawalli fails to perform an act recognized
by Muslim Law as pious, religious and charitable. Under Section
61 of the 1954 Act, such an application can be made by the Board
only to the court, but now it can be made to the Tribunal under
B
Section 94(1). In view of the language employed in Sections 83
and 85, coupled with the reference to civil courts in Sections 86,
90 and 93, it appears that the question of bar of jurisdiction of the
civil court, has been left by the law makers to the vagaries of
judicial opinion and this has given rise to conflicting decisions.
[Paras 28, 29][23-H; 24-A-C] C
1.5 The decision of this Court in Ramesh Gobindram is the
one, which, ironically, attempted to settle the controversy on hand,
but has produced conflicting results in the subsequent decisions.
A bare reading of Sections 6 and 7 as they stood when Ramesh
Gobindram was decided shows that the language employed D
therein appears to have deflected the attention of many a court
without exception. A careful look at the scheme of the Act would
show that the Act is divided into 9 chapters. Chapter-II which
contains Sections 4 to 8, is primarily concerned with the survey
of waqfs. Sections 6 and 7 are incidental to the scheme of Chapter-
II alone, which is why they speak only about two questions namely, E
(i) whether a particular property specified as a waqf property in
the list of waqfs is actually a waqf property or not; and (ii) whether
a waqf specified in such list is a Shia waqf or Sunni waqf. While
Section 4 contemplates a preliminary survey of all waqfs in the
State, Section 5(2) speaks about publication of the list of waqfs F
(separately for Shia and Sunni) in the official gazette. Since
Sections 6 and 7 follow Sections 4 and 5, they refer only to the
aforesaid two questions. In other words, the questions relevant
for the purposes of Sections 4 and 5 alone, are dealt with in
Sections 6 and 7 and hence the discussion regarding the
jurisdiction of the Waqf Tribunal should not start and end with G
Sections 6 and 7. Sections 83 and 85, as well as Sections 86, 90
and 93, which use the word “court”, are to be found in Chapter
VIII of the Act. The heading given to Chapter VIII is “Judicial
Proceedings”. Therefore, for finding an answer to the question
relating to the bar of jurisdiction under Section 85, it is not enough H
6 SUPREME COURT REPORTS [2021] 13 S.C.R.

A merely to refer to Section 6(5) or Section 7(2). The language of
Section 85 is clearly in contrast to the language employed in
Section 6(5) and Section 7(2). [Paras 30-32][34-F-H; 35-A-D]
Ramesh Gobindram v. Surgra Humayun Mirza Waqf
(2010) 8 SCC 726 : [2010] 10 SCR 945 – distinguished.
B 1.6 A conjoint reading of Sections 6, 7 and 85 would show
that the bar of jurisdiction of civil court contained in Section 6(5)
and Section 7(2) is confined to Chapter-II, but the bar of
jurisdiction under Section 85 is all pervasive. This can be seen
from the following distinguishing features:-
C (i) Section 6(5) bars the institution or commencement of a
suit or other legal proceeding in a court “in relation to any question
referred to in sub-section (1)”. Sub-section (1) of Section 6
speaks only about two questions namely, whether a particular
property specified as a waqf property in the list of waqfs is a waqf
D property or not and whether a waqf is Shia waqf or Sunni waqf;
(ii) Section 7(2) bars any court, tribunal or other authority
from staying any proceeding before the Waqf Tribunal, in respect
of a waqf, on the only ground of pendency of any suit, application
or appeal or other proceeding. Section 7(2) specifically relates
E to the proceedings under Section 7 and not to any other
proceeding. This is clear by the use of the words, “no proceeding
under this Section”. Section 7(1) again deals only with two questions
namely, whether a particular property specified as waqf property
in the list of waqfs is a waqf property or not and whether a
waqf specified in the list is a Shia waqf or Sunni waqf. Therefore,
F the bar under Section 7(2) is also confined only to these two
questions, on account of the use of the words, “no proceeding
under this Section”.
(iii) While Sections 6(1) and 7(1) speak only about two
questions which are germane to the matters covered by Chapter-
G II of the Act alone, Section 85 speaks (i) about any dispute, question
or other matter relating to any waqf or waqf property and (ii) about
“other matter which is required by or under this Act to be determined
by a Tribunal”.

H
RASHID WALI BEG v. FARID PINDARI & ORS. 7

(iv) A major distinguishing feature between Sections 6(1) A
and 7 (1) on the one hand and Section 83 on the other hand is
that the dispute, question or other matter referred to in Sections
6 and 7 are confined only to what is included in the list of waqfs
prepared under Section 4 and published under Section 5. The
words “specified … in the list of waqfs” found in sections 6 (1)
B
and 7(1), are conspicuous by their absence in section 83 (1).
Therefore, it is clear that Sections 6 and 7 speak only about two
categories of cases, but Section 83 covers the entire gamut of possible
disputes in relation to any waqf or waqf property. [Para 33][35-D-
H; 36-A-D]
1.7 There are 2 limbs to Section 85. The words, “any C
dispute, question or other matter relating to any waqf or waqf
property” used in the first limb of Section 85, provide a clear
indication that the Tribunal would have jurisdiction to adjudicate
upon any dispute and answer any question relating to a waqf or
waqf property, including the two questions mentioned in Sections D
6(1) and 7(1). The words in the second limb of Section 85 namely,
“other matter which is required by or under this Act to be determined
by a Tribunal”, seek to cover matters which have no relevance
to the two questions covered by Section 6(1) and 7(1).
Unfortunately, many courts were misled by the reference to two
specific questions in Sections 6(1) and 7(1), to come to the E
conclusion that the bar of jurisdiction was confined only to disputes
revolving around those two questions. [Paras 34, 35][36-D-G]
1.8 The basis of the decision in Ramesh Gobindram was
removed through an amendment under Act 27 of 2013. Ramesh
Gobindram sought to address the question whether a Waqf F
Tribunal was competent to entertain and adjudicate upon disputes
regarding eviction of persons in occupation of what are admittedly
waqf properties. Since this Court answered the question in the
negative, Section 83(1) was amended by Act 27 of 2013 to include
the words, “eviction of tenant or determination of rights and G
obligations of the lessor and lessee of such property”.
Simultaneously, sub-section (6) was inserted in Section 7 by Act
27 of 2013. This sub-section (6) of Section 7 states that the
Tribunal shall have the power of assessment of damages by

H
8 SUPREME COURT REPORTS [2021] 13 S.C.R.

A unauthorized occupation of waqf property and to penalize such
unauthorized occupants for their illegal occupation of the waqf
property and to recover the damages as arrears of land revenue
through the Collector. Ideally, the provisions of sub-section (6)
should have found a place somewhere in Section 83, since what
is sought to be covered by sub-section (6) of Section 7 has no
B
correlation to the two questions about which Section 7(1) speaks.
But the reason why the Parliament thought fit to include something
in Section 7, which has no correlation to sub-section (1) of Section
7, is perhaps the fact that Ramesh Gobindram turned primarily
on the language of Sections 6 and 7. [Paras 36, 37][36-G-H; 37-
C A-B, E]
1.9 The basis of Ramesh Gobindram now stands removed
through amendment Act 27 of 2013. In fact, when Ramesh
Gobindram was decided, Sections 6(1) and 7(1) enabled only three
categories of persons to approach the Waqf Tribunal for relief.
D They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any
person interested therein. However, the explanation under
Section 6(1) clarified that the expression “any person interested
therein” shall include every person, who, though not interested
in the waqf, is interested in the property. But by Act 27 of 2013
the words, “any person interested” were substituted by the words,
E “any person aggrieved”, meaning thereby that even a non
Muslim is entitled to invoke the jurisdiction of the Tribunal.
Due to the substitution of the words “any person aggrieved”,
Act 27 of 2013 has deleted the Explanation under 6(1). This
amendment has also addressed the concern expressed in Ramesh
F Gobindram whether a non Muslim could be put to jeopardy by
the bar of jurisdiction, merely because the property is included
in the list of waqfs. The Explanation under sub-section (1) of
Section 6, as it stood at the time when Ramesh Gobindram was
decided, already took care of this contingency, but was omitted
to be brought to the notice of this court. [Para 38][37-F-H; 38-A-
G B]
1.10 If the Waqf Act, 1995 had merely stopped with a
reference to the matters as listed as capable of being adjudicated
by the Tribunal, there would have been no scope for any confusion.
But unfortunately, the Act makes a specific reference to court/
H
RASHID WALI BEG v. FARID PINDARI & ORS. 9

civil Court also in certain places. Sections 86, 90 and 93 make A
specific reference to “Court”. Section 68(6) goes a step further
by making a reference to ‘civil court’. A combined reading of
Sections 68(6), 86, 90 and 93 goes to show that the bar of
jurisdiction under Section 85 does not apply at least to the matters
as enumerated, covered by Sections 68(6), 86 and 90. [Paras 44,
B
45][42-H; 43-A-B, D-E]
2.1 After admitting the property to be a waqf property, the
appellant herein (defendant no.1) filed an application under Order
VII, Rule 11 on the sole ground that a suit for injunction could be
filed only before the Waqf Tribunal. This application for rejection
of plaint was allowed by the Trial Court and the suit was dismissed. C
The first appellate court confirmed the same but on a second
appeal, the High Court set aside the judgments of the Trial Court
and the first appellate court with a direction to the Civil Court to
proceed in accordance with law. The approach of the High Court
is not in tune with the law. The question as to whether the suit for D
perpetual injunction is maintainable before the Waqf Tribunal or
not, is already answered in Akkode Jumayath Palli Paripalana
Committee. This Court, pointed out in the said decision that
Ramesh Gobindram was distinguished in Anis Fatma Begum, and
that therefore the Tribunal had jurisdiction to entertain a suit for
perpetual injunction. But unfortunately, this decision rendered E
by this Court on 23.07.2013 does not appear to have been
brought to the notice of the High Court. [Paras 49, 50][44-F-G;
45-A-B]
Akkode Jumayath Palli Paripalana Committee v. P.V.
Ibrahim Haji and Ors. (2014) 16 SCC 65 : [2013] 7 F
SCR 1033 – relied on.
2.2 It is not as though there was no provision in the Waqf
Act conferring jurisdiction upon the Tribunal in respect of the
waqf property. The first part of Section 83 can be broken into two
limbs, the first concerning the determination of any dispute, G
question or other matter relating to a waqf and the second,
concerning the determination of any dispute, question or other
matter relating to a waqf property. After Amendment Act 27 of
2013, even the eviction of a tenant or determination of the rights
and obligation of the lessor and lessee of such property, come H
10 SUPREME COURT REPORTS [2021] 13 S.C.R.

A within the purview of the Tribunal. Though the proceedings out
of which the present appeal arises, were instituted before the
Amendment Act, the words “any dispute, question or other matter
relating to a waqf or waqf property” are sufficient to cover any
dispute, question or other matter relating to a waqf property. The
court cannot do violence to the express language of the statute.
B
Section 83(1) even as it stood before the amendment, provided
for the determination by the Tribunal, of any dispute, question or
other matter (i) relating to a waqf; and (ii) relating to a waqf
property. Therefore to say that the Tribunal will have jurisdiction
only if the subject property is disputed to be a waqf property and
C not if it is admitted to be a waqf property, is indigestible in the
teeth of Section 83(1). [Paras 52, 53][45-H; 46-A-C, E]
2.3 Section 83(5) of the Act makes it clear that the Tribunal
shall be deemed to be a Civil Court and shall have the same
powers as may be exercised by a Civil Court under the CPC,
D while trying a suit or executing a decree or order. The Waqf
Tribunal will have power to issue temporary injunctions under
Order XXXIX, Rule 1 CPC. The dichotomy created in some
decisions of this court, between the properties which are admitted
to be waqf properties and properties which are disputed to be so,
is on account of the misapplication of the two limited questions in
E Sections 6(1) and 7(1) to the whole of the Act including section
83. The prescription in Section 83 cannot be taken to have been
curtailed or circumscribed by Sections 6(1) and 7(1), to come to
the conclusion that the Tribunal will assume jurisdiction only when
a property is disputed to be a waqf property. [Paras 54, 55][46-F-
F G; 47-C-E]
Syed Mohideen and Another v. Ramanathapura Peria
Mogallam Jamath and Others (2010) 13 SCC 62 :
[2010] 8 SCR 777 – relied on.
2.4 In the case on hand, the property is admitted to be a
G waqf property. Therefore, to allow the plaintiff to ignore the Waqf
Tribunal and to seek a decree of permanent injunction and
mandatory injunction from a civil court, would be ignore the
mandate of section 83 and 85 which speak of any dispute, question
or other matter relating to a waqf or a waqf property. A question
H
RASHID WALI BEG v. FARID PINDARI & ORS. 11

as to the nature of the waqf and whether the plaintiff is a beneficiary A
of the waqf, has also arisen in this case. This question has
necessarily to be decided by the Tribunal and not the civil court.
The judgment and decree of the High Court are set aside. The
trial court shall return the plaint to the plaintiff, for presentation
to the jurisdictional Waqf Tribunal. [Paras 56, 57][47-E-F, G-H;
B
48-A]
Sayed Muhammed Mashur Kunhi Koyal Thangal v.
Badagara Jumayath Palli Dharas Committee (2004) 7
SCC 708 : 2004 (6) JT 556; Sardar Khan v. Syed
Najmul Hasan (2007) 10 SCC 727 : [2007] 3 SCR 436
– distinguished. C

Board of Waqf v. Anis Fatma Begum (2010) 14 SCC
588 : [2010] 13 SCR 1063; Telangana State Waqf Board
v. Mohamed Muzafar (2021) SCC Online SC 537;
Haryana Waqf Board v. Mahesh Kumar (2014) 16 SCC
45 : [2013] 12 SCR 596 – relied on. D

Punjab State Waqf Board v. Pritpal Singh (2013) SCC
Online SC 1345; Bhanwar Lal v. Rajasthan Board of
Muslim Waqf (2014) 16 SCC 51 : [2013] 9 SCR 721;
Faseela M v. Munnerul Islam Madrasa Committee
(2014) 16 SCC 38 : [2014] 4 SCR 613; Rajasthan Waqf E
Board v. Devki Nandan Pathak (2017) 14 SCC 561;
Dharampal v. Punjab Waqf Board (2018) 11 SCC 449
: [2017] 8 SCR 316; Punjab Waqf Board v. Sham Singh
Harike (2019) 4 SCC 698 : [2019] 2 SCR 61; Kiran
Devi v.Bihar State Sunni Waqf Board (2021) SCC F
Online SC 280; Abdul Jata Mohammed Ishak v.
Russomoy Dhur Choudhary 1894 (22) Calcutta (PC)
– referred to.
Case Law Reference
[2007] 3 SCR 436 distinguished Para 30 G
[2010] 10 SCR 945 distinguished Para 30
[2010] 13 SCR 1063 relied on Para 30
[2013] 7 SCR 1033 relied on Para 30
H
12 SUPREME COURT REPORTS [2021] 13 S.C.R.

A [2013] 9 SCR 721 referred to Para 30
[2013] 12 SCR 596 referred to Para 30
[2014] 4 SCR 613 referred to Para 30
[2017] 8 SCR 316 referred to Para 30
B [2019] 2 SCR 61 referred to Para 30
[2010] 8 SCR 777 referred to Para 54
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 6336
of 2021.
C From the Judgment and Order dated 16.12.2014 of the High Court
of Judicature at Allahabad, Lucknow Bench, Lucknow in Second Appeal
No.286 of 2014.
Pradeep Misra, Daleep Dhyani, Suraj Singh, Manoj Kumar
Sharma, Bhuwan Chandra, Advs. for the Appellant.
D Pradeep Kant, Sr. Adv., Divyanshu Sahay, Anurag Kishore, Advs.
for the Respondents.
The Judgment of the Court was delivered by
V. RAMASUBRAMANIAN, J.
E 1. Aggrieved by the Judgment of the High Court of Judicature at
Allahabad, Lucknow Bench, holding that a suit for a permanent injunction
before a civil court is not barred by Section 85 of the Waqf Act, 1995
(for short “the Act”), the defendant has come up with the above appeal.
2. We have heard Mr. Pradeep Misra, learned counsel for the
F appellant and Mr. Pradeep Kant, learned senior counsel for the first
respondent.
3. The first respondent herein filed a suit in R.S. No.137 of 2011
against the appellant herein as defendant No. 1 and impleading the
respondents 2 to 5 herein as defendants 2 to 5. The suit was for a
G mandatory injunction directing the defendants to remove the
encroachment made by them and for a permanent injunction restraining
the defendants from interfering with the plaintiff’s possession of a piece
of land situated at Mirzaganj, Pargana and Tehsil Malihabad, Lucknow.
The suit was filed in the Court of Civil Judge, Senior Division, Malihabad.
The case of the first respondent herein/plaintiff was that the suit property
H
RASHID WALI BEG v. FARID PINDARI & ORS. 13
[V. RAMASUBRAMANIAN, J.]

originally belonged to one Mirza Abid Ali Beg; that during his life time he A
created a Waqf-al-Aulad; that during his life time, Mirza Abid Ali Beg
was the mutawalli; that after his life time, his elder daughter became the
mutawalli; that thereafter, the younger daughter Smt. Afzal Jahan Begum
became the mutawalli; that the said Afzal Jahan Begum was the
grandmother of the plaintiff; that the father of the plaintiff led a wayward
B
life, forcing the grandmother to deliver possession of the property to the
plaintiff, authorizing him to maintain the properties and utilize the income
thereof for the maintenance of the family; that after taking possession,
the plaintiff constructed shops on the land and let them out to tenants;
that after sometime, the grandmother of the plaintiff appointed the father
of the plaintiff as the mutawalli; that there were criminal proceedings C
between the plaintiff and his father; that on 18.12.2010, the defendants
brought building materials and started digging foundation in the land behind
the shops, at the instigation of the father of the plaintiff; that though the
plaintiff gave a police complaint, they were indifferent, emboldening the
defendants to raise a boundary wall in a portion of the land and that,
D
therefore, the plaintiff was constrained to file a suit for mandatory and
perpetual injunction.
4. After entering appearance in the suit, the appellant herein who
was the first defendant, filed a written statement admitting the existence
of the waqf and waqf property. Thereafter, he took out an application
under Order VII, Rule 11 CPC for rejection of plaint, on the simple E
ground that the Civil Court has no jurisdiction to try a suit relating to
what is admittedly a waqf property. The said application was allowed by
the Civil Judge, Senior Division, Malihabad and the suit was dismissed.
5. Challenging the aforesaid judgment, the first respondent herein/
plaintiff filed a regular appeal under Section 96 CPC, but the first Appellate F
Court dismissed the appeal.
6. However, the second appeal filed by the first respondent-plaintiff
was allowed by the High Court on the short ground that since the dispute
does not involve either a question as to the nature of the property or the
question whether the suit schedule property is a waqf property or not G
and also since the suit is only for injunction, the Civil Court was not
barred from entertaining the suit, under Section 85 of the Act. It is against
the said judgment of the High court that the first defendant in the suit
has come up with the above appeal.
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14 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 7. Therefore, the only question that arises for our consideration in
this appeal is as to whether a suit for permanent injunction in respect of
a waqf property is maintainable in a civil court or not.
8. The question of jurisdiction of civil courts to adjudicate upon
disputes, for the determination of which special tribunals are constituted
B under special statutes, has been a vexed question which has turned,
over a period of time, into a seesaw battle. This is especially so particularly
in respect of waqfs. But there is a historical background to this.
1913 Act
9. The earliest enactment to come up, relating to waqfs, was the
C Mussalman Waqf Validating Act, 1913 (6 of 1913). This Act recognised
the right of muslims to make settlement of properties by way of waqf in
favour of their families, children and descendents. This Act declared
that no waqf shall be deemed as invalid merely because it postponed the
religious and charitable benefit confirmed therein, until the extinction of
D the family of the founder. The reason why this Act was legislated, was
to overcome the decision of the Privy Council in Abdul Jata Mohammed
Ishak vs. Russomoy Dhur Choudhary1, which declared as invalid, a
waqf created for the benefit of the family, though coupled with a gift to
charity on the failure of the line of descendents. This Validating Act of
1913 was given retrospective application by Act 32 of 1930.
E
1923 Act
10. Then came the Mussalman Waqf Act 1923, which can be
called the precursor of Waqf Legislation, dealing with the creation,
maintenance and administration of waqf and waqf property. This Act
F required the mutawalli of every waqf to furnish to the Court within whose
jurisdiction the waqf property was situate, a statement of particulars.
The Act also mandated the mutawalli of every waqf to furnish a full and
true statement of accounts to the Court, after it is audited. The Court
was empowered under this Act to hold an inquiry to ascertain: (i) Whether
the waqf exists (ii) Whether any property is a waqf property and (iii)
G Who is the mutawalli of the waqf. The 1923 Act contemplated the creation
of a Register of waqfs and the Court was conferred with the power to
record entries in the said Register. The 1923 Act contained a provision
in Section 6N, empowering the Court to authorise any one or more of
the members of the waqf committee to institute or defend any Suit or
H 1
[1894 (22) Calcutta (PC)]
RASHID WALI BEG v. FARID PINDARI & ORS. 15
[V. RAMASUBRAMANIAN, J.]

proceeding for the protection or recovery of waqf property or for the A
application of a waqf property in any public charitable or religious purpose.
This power of the Court under Section 6N, was notwithstanding anything
contained in Section 92 of CPC.
11. Thus the 1923 Act specifically provided a role for the civil
court in the matter of recognition and registration of waqfs, protection of B
waqf properties and the oversight of the management of the waqfs. In
fact, the court had enormous powers under the 1923 Act, including the
power to order a special audit.
1954 Act
12. After India attained Independence, the Parliament enacted C
the Waqf Act 1954, with the professed object of providing for better
administration and supervision of waqfs. The statements of Objects and
Reasons of the 1954 Act, recorded that the 1923 Act was not of much
practical value and that therefore the provincial governments of Bombay,
Bengal and the United Provinces introduced amendments respectively D
in 1934, 1935 and 1936 to the 1923 Act.
13. Sections 6, 27, 36A, 43, 55, 56, 57, 60 and 61 of the 1954 Act
recognised the Civil Court as the forum for the resolution of various
disputes relating to waqfs and waqf properties as could be seen from
the following :- E
(i) Section 6 enabled the Board or mutawalli or any person
interested to institute a suit in a Civil Court of competent Jurisdiction,
wherever any question arose as to (A) Whether a particular property
specified in the list published under Section 5 is a waqf property or (B)
Whether the waqf is a Shia waqf or a Sunni waqf. F
(ii) Though Section 27(1) of the Act, authorised the waqf Board
also to decide the question whether a particular property is a waqf
property or not, the decision of the Board on the question, was made
subject to jurisdiction of the Civil Court as seen from Section 27(2).
(iii) Section 36-A (1) provided for the remedy of a requisition by G
the waqf Board to the Collector, whenever any immovable property of a
waqf was transferred without the previous sanction of the Board. The
Collector was empowered under this provision to pass an order directing
the person in possession of the said property, to deliver it to the Board.
The order so passed by the Collector was appealable to the District
Court under Section 36A (4). H
16 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (iv) Section 43(5) of the 1954 Act made the order of the Waqf
Board removing the mutawalli and directing him to deliver possession of
the waqf property, deemed to be a decree of the Civil Court, executable
by the Civil Court, as if it was a decree passed by it.
(v) Section 55 enabled the Waqf Board to institute a suit to obtain
B any of the reliefs mentioned in Section 92, CPC relating to any waqf,
without obtaining the consent referred to in Section 92, CPC. Section 56
contained a provision similar to Section 80 of CPC and Section 57 laid
down the procedure to be followed by the Civil Court, in every suit or
proceeding relating to title to waqf property or the right of a mutawalli or
any sale of waqf property in execution of a decree of Civil Court.
C
(vi) Section 60 imposed a bar on the rights of the parties to a suit,
to enter into a compromise without the sanction of the Board. The Waqf
Board was empowered by Section 61 to make an application to the
Court in case of failure of mutawalli to discharge his duties.

D Waqf Inquiry Committee and 1984 Amendment Act
14. The 1954 Act, went through some amendments in 1959, 1964
and in 1969. But by and large, the working of the Waqf Boards was
found to be unsatisfactory and hence with a view to tone up the
administration of waqfs, the Central Government constituted a committee
E known as Waqf Inquiry Committee. The Committee made a large number
of recommendations and its Report, after consultation with all stake
holders, led to comprehensive amendments to the Act, under the Waqf
(Amendment) Act, 1984. One of the important amendments made by
this Amendment Act, was the substitution of the existing Section 55 of
the principal Act with a new provision. The newly substituted Section
F 55(1) provided for the constitution of special tribunals for the determination
of any dispute, question or other matter relating to a waqf or waqf
property. But the right to invoke the jurisdiction of the Waqf Tribunal
was made available under Section 55(2) of the Act, only to, (i) any
mutawalli of the waqf; (ii) a person interested in the waqf; or (iii) any
G other person aggrieved by any order made under the Act or Rule or any
order made there under. Section 55(5) declared that the Tribunal shall
be deemed to be a civil court, having the same powers as may be
exercised by a civil court under the CPC, while trying a suit or executing
a decree. However, the Tribunal was given the freedom to follow its
own procedure as may be prescribed, notwithstanding anything contained
H
RASHID WALI BEG v. FARID PINDARI & ORS. 17
[V. RAMASUBRAMANIAN, J.]

in the CPC. Though the decision of the Tribunal was declared to be final A
under sub section (7) of Section 55, and though no appeal would lie
against a decision of the Tribunal by virtue of sub-section (9), the High
Court was conferred a power of revision under the proviso to sub-section
(9) of Section 55.
15. Section 55C barred the jurisdiction of civil court in respect of B
any dispute, question or other matter relating to any waqf, waqf property
or other matter which is required by or under the Act to be determined
by a Tribunal. But at the same time, Section 55D contained a provision
enabling the court to appoint a Receiver under certain circumstances.
Section 55D reads as follows:-
C
“55D. Notwithstanding anything contained in the Code of Civil
Procedure, 1908, or in any other law for the time being in force,
where any suit or other legal proceeding is instituted or
commenced-
(a) by or on behalf of a Board – D
(i) to set aside the sale of any immovable property, which
is waqf property, in execution of a decree or order of a
civil court;
(ii) to set aside the transfer of any immovable property,
which is waqf property, made by the mutawalli thereof, E
whether for valuable consideration or note, without, or
otherwise than in accordance with, the sanction of the
Board;
(iii) to recover possession of the property referred to in
clause(a) or clause (b) or to restore possession of such F
property to the mutawalli of the concerned waqf; or
(b) by a mutawalli to recover possession of immovable
property, which is waqf property, which has been
transferred by a previous mutawalli, whether for valuable
consideration or not, without or otherwise than in G
accordance with, the sanction of the Board and which
is in the possession of the defendants, the court may, on
the application of the plaintiff, appoint a receiver of such
property and direct such receiver to pay from time to
time to the plaintiff, out of the income of the property,
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18 SUPREME COURT REPORTS [2021] 13 S.C.R.

A such amount as the court may consider to be necessary
for further prosecution of the suit.
The Waqf Act, 1995
16. But it appears that the Amendment Act of 1984 came under
severe criticism and hence only two provisions of the 1984 Act came to
B be enforced because of strong opposition from the community 2.
Therefore, a comprehensive bill on waqf matters incorporating the
features of the 1954 Act and such provisions of the 1984 Act in respect
of which there was near consensus, was introduced. This became the
Waqf Act, 1995. This Act provided for the setting up of waqf tribunals to
C consider questions and disputes pertaining to waqfs. An important feature
of the 1995 Act is that it was made applicable to the whole of India
except the State of Jammu and Kashmir, though the Waqf Act, 1954
was not applicable to Uttar Pradesh, West Bengal, parts of Gujarat,
parts of Maharashtra and some of the North Eastern states3.
D 16. Sections 83 and section 85 of the Waqf Act, 1995 (as they
originally stood before amendment in 2013) read as follows:-
“83. Constitution of Tribunals, etc.—
(1) The State Government shall, by notification in the Official
Gazette, constitute as many Tribunals as it may think fit, for the
E determination of any dispute, question or other matter relating to
a waqf or waqf property under this Act and define the local limits
and jurisdiction under this Act of each of such Tribunals.
(2) Any mutawalli person interested in a waqf or any other person
aggrieved by an order made under this Act, or rules made
F thereunder, may make an application within the time specified in
this Act or where no such time has been specified, within such
time as may be prescribed, to the Tribunal for the determination
of any dispute, question or other matter relating to the waqf.
(3) Where any application made under sub-section (1) relates to
G any waqf property which falls within the territorial limits of the
jurisdiction of two or more Tribunals, such application may be
made to the Tribunal within the local limits of whose jurisdiction
the mutawalli or any one of the mutawallis of the waqf actually
2
See paragraph 3 of the Statement of Objects and Reasons of 1995 Act
3
See paragraph 6 (h) of the Statement of Objects and Reasons of 1995 Act
H
RASHID WALI BEG v. FARID PINDARI & ORS. 19
[V. RAMASUBRAMANIAN, J.]

and voluntarily resides, carries on business or personally works A
for gain, and, where any such application is made to the Tribunal
aforesaid, the other Tribunal or Tribunals having jurisdiction shall
not entertain any application for the determination of such dispute,
question or other matter:
Provided that the State Government may, if it is of opinion B
that it is expedient in the interest of the waqf or any other person
interested in the waqf or the waqf property to transfer such
application to any other Tribunal having jurisdiction for the
determination of the dispute, question or other matter relating to
such waqf or waqf property, transfer such application to any other
Tribunal having jurisdiction, and, on such transfer, the Tribunal to C
which the application is so transferred shall deal with the application
from the stage which was reached before the Tribunal from which
the application has been so transferred, except where the Tribunal
is of opinion that it is necessary in the interests of justice to deal
with the application afresh. D
(4) Every Tribunal shall consist of—
(a) one person, who shall be a member of the State Judicial
Service holding a rank, not below that of a District,
Sessions or Civil Judge, Class I, who shall be the
Chairman; E

(b) one person, who shall be an officer from the State Civil
Services equivalent in rank to that of the Additional
District Magistrate, Member;
(c) one person having knowledge of Muslim law and F
jurisprudence, Member,
and the appointment of every such person may be made either by
name or by designation.
(4A) The terms and conditions of appointment including the salaries
and allowances payable to the Chairman and other members other G
than persons appointed as ex officio members shall be such as
may be prescribed.
(5) The Tribunal shall be deemed to be a civil court and shall have
the same powers as may be exercised by a civil court under the
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20 SUPREME COURT REPORTS [2021] 13 S.C.R.

A Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or
executing a decree or order.
(6) Notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), the Tribunal shall follow such
procedure as may be prescribed.
B
(7) The decision of the Tribunal shall be final and binding upon the
parties to the application and it shall have the force of a decree
made by a civil court.
(8) The execution of any decision of the Tribunal shall be made
by the civil court to which such decision is sent for execution in
C accordance with the provisions of the Code of Civil Procedure,
1908 (5 of 1908).
(9) No appeal shall lie against any decision or order whether interim
or otherwise, given or made by the Tribunal:

D Provided that a High Court may, on its own motion or on
the application of the Board or any person aggrieved, call for and
examine the records relating to any dispute, question or other matter
which has been determined by the Tribunal for the purpose of
satisfying itself as to the correctness, legality or propriety of such
determination and may confirm, reverse or modify such
E determination or pass such other order as it may think fit.
85. Bar of jurisdiction of civil courts.—No suit or other legal
proceeding shall lie in any civil court in respect of any dispute,
question or other matter relating to any waqf, waqf property or
other matter which is required by or under this Act to be determined
F by a Tribunal.
17. It is relevant to note at this stage that the words “eviction of
tenant or determination of rights and obligations of the lessor and
the lessee of such property” were inserted in sub-section (1) of Section
83, after the words “waqf property”, by Amendment Act 27 of 2013.
G
18. Similarly, the words, “civil court” were substituted by the words
“civil court, revenue court and other authority”, in Section 85, by
Amendment Act 27 of 2013.
19. Thus, Act 27 of 2013 did 2 things. First it expanded the
jurisdiction of Waqf Tribunal even to cover landlord-tenant disputes and
H
RASHID WALI BEG v. FARID PINDARI & ORS. 21
[V. RAMASUBRAMANIAN, J.]

the rights and obligations of lessor and lessee. Second, the Amendment A
Act enlarged the bar of jurisdiction, to cover even revenue courts and
other authorities.
20. Sub-section (2) of Section 83 of the 1995 Act indicates the
persons who are entitled to invoke the jurisdiction of the Tribunal. They
are, (i) any mutawalli of the waqf; (ii) a person interested in the waqf; B
or (iii) any other person aggrieved by any order made under the Act or
Rules or any order made there under.
21. Dehors the jurisdiction conferred upon the Tribunal under
Section 83(1) and dehors the bar of jurisdiction of the civil court, revenue
court and any other authority under Section 85, the 1995 Act contains a C
special provision in Section 86 for the appointment by the civil court, of
a Receiver, in certain cases. Section 86 reads as follows:-
86. Appointment of a receiver in certain cases-
Notwithstanding anything contained in the Code of Civil Procedure,
1908 (5 of 1908), or in any other law for the time being in force, D
where any suit or other legal proceeding is instituted or
commenced-
(a) by or on behalf of a Board-
(i) to set aside the sale of any immovable property, which is
waqf property, in execution of a decree or order of a civil E
court;
(ii) to set aside the transfer of any immovable property, which
is waqf property, made by the mutawalli thereof, whether
for valuable consideration or not, without or otherwise
than in accordance with, the sanction of the Board; F
(iii) to recover possession of the property referred to in clause
(a) or clause (b) or to restore possession of such property
to the mutawalli of the concerned waqf; or
(b) by a mutawalli to recover possession of immovable property,
which is waqf property, which has been transferred by a G
previous mutawalli, whether for valuable consideration or not,
without otherwise than in accordance with the sanction of the
Board, and which is in the possession of the defendant,

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22 SUPREME COURT REPORTS [2021] 13 S.C.R.

A the court may, on the application of the plaintiff, appoint a
receiver of such property and direct such receiver to pay from
time to time to the plaintiff, out of the income of the property,
such amount as the court may consider to be necessary for
further prosecution of the suit.
B 22. Section 86 thus recognises the right of the Board to institute
or commence any suit or other legal proceeding, (i) to set aside the sale
of a waqf property in execution of a decree of civil court; (ii) to set
aside the transfer of any waqf property made by the mutawalli, without
the sanction of the Board or otherwise than in accordance with the
sanction of the Board; and (iii) to recover and restore possession of
C such property to the mutawalli. Clause (b) of Section 86 recognises a
similar right for the mutawalli to recover possession of waqf property,
which has been transferred by the previous mutawalli or any other person
without the sanction of the Board.
23. It is therefore clear from Section 86, that in suits or other
D proceedings instituted by the Board falling under clause (a) or those
instituted by the mutawalli falling under clause (b) of Section 86, the civil
court will have jurisdiction to appoint a receiver. As a corollary, the bar
under Section 85 will have no application to cases covered by Section
86.
E 24. Apart from the bar of jurisdiction of civil courts under Section
85, the Act envisages yet another bar under Section 88. Section 88
excludes the jurisdiction of a civil court to entertain a challenge to any
notification or order or decision made, proceeding or action taken by the
Central Government or the State Government under the Act. Section 88
F reads as follows:-
“88. Bar to challenge the validity of any notification, etc.—
Save as otherwise expressly provided in this Act, no notification
or order or decision made, proceeding or action taken, by the
Central Government or the State Government under this Act or
G any rule made thereunder shall be questioned in any civil court.”
25. Section 89 of the Waqf Act, 1995 contains a rule similar to
Section 80 CPC, in respect of suits instituted against the Board.
Interestingly, Section 90 which regulates the procedure for the issue of
notice of suits, refers both to courts and tribunals. It reads as follows:-
H
RASHID WALI BEG v. FARID PINDARI & ORS. 23
[V. RAMASUBRAMANIAN, J.]

“90. Notice of suits, etc., by courts.— (1) In every suit or A
proceeding relating to a title to or possession of a waqf property
or the right of a mutawalli or beneficiary, the court or Tribunal
shall issue notice to the Board at the cost of the party instituting
such suit or proceeding.
(2) Whenever any waqf property is notified for sale in B
execution of a decree of a civil court or for the recovery of any
revenue, cess, rates or taxes due to the Government or any local
authority, notice shall be given to the Board by the court, Collector
or other person under whose order the sale is notified.
(3) In the absence of a notice under sub-section (1), any C
decree or order passed in the suit or proceeding shall be declared
void, if the Board, within one month of its coming to know of such
suit or proceeding, applies to the court in this behalf.
(4) In the absence of a notice under sub-section (2), the
sale shall be declared void, if the Board, within one month of its D
coming to know of the sale, applies in this behalf to the court or
other authority under whose order the sale was held.
26. It is seen from sub-section (1) of Section 90 that it uses the
words, “the court or Tribunal” and it refers to suit or proceeding relating
to title to or possession of a waqf property or the right of the mutawalli E
or beneficiary.
27. A cumulative reading of Sections 86, 89 and 90 would show
that the bar of jurisdiction under Section 85 is not total and omnipotent
and that there may be cases which could still be entertained by civil
courts. In fact, Section 93 which prohibits the mutawalli from entering F
into a compromise with the opposite party in any suit, also refers to
“court”. Section 93 reads as follows:-
“93. Bar to compromise of suits by or against mutawallis.—
No suit or proceeding in any court by or against the mutawalli of
a waqf relating to title to waqf property or the rights of the
G
mutawalli shall be compromised without the sanction of the Board.”
28. We have seen elsewhere that Section 83(2) specifically enables,
(i) any mutawalli; (ii) any person interested in a waqf; and (iii) any other
person aggrieved by an order made under the Act, to invoke the jurisdiction
of the Tribunal for the determination of any dispute, question or other
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24 SUPREME COURT REPORTS [2021] 13 S.C.R.

A matter relating to the waqf. Section 83(2) does not make any reference
to the Waqf Board. However, Section 94(1) enables the Board to apply
to the Tribunal, for appropriate orders, whenever a mutawalli fails to
perform an act recognized by Muslim Law as pious, religious and
charitable. Under Section 61 of the 1954 Act, such an application can be
made by the Board only to the court, but now it can be made to the
B
Tribunal under Section 94(1).
29. In view of the language employed in Sections 83 and 85, coupled
with the reference to civil courts in Sections 86, 90 and 93, it appears
that the question of bar of jurisdiction of the civil court, has been left by
the law makers to the vagaries of judicial opinion and this has given rise
C to conflicting decisions, to some of which, we shall now turn our attention.
30. Some of the decisions of this Court, in which this controversy
was addressed, are presented in the form of a table, for the purpose of
easy appreciation. Apart from the cause title and citation, the table below
gives an indication of the forum from which the original proceedings
D emanated in those cases, the reliefs sought by the plaintiff/applicant in
those original proceedings and a summary of facts and the ratio laid
down in each of them.

E

F

G

H
RASHID WALI BEG v. FARID PINDARI & ORS. 25
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
26 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

F

G

H
RASHID WALI BEG v. FARID PINDARI & ORS. 27
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
28 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

F

G

H
RASHID WALI BEG v. FARID PINDARI & ORS. 29
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

H
30 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

F

G

H
RASHID WALI BEG v. FARID PINDARI & ORS. 31
[V. RAMASUBRAMANIAN, J.]

A

B

C

D

E

F

G

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32 SUPREME COURT REPORTS [2021] 13 S.C.R.

A 30. It can be seen from the table given above that the original
proceedings from out of which the decisions at Sl.No.1 and 2 (Syed
Muhammed Mashur Kunhi Koyal Thangal & Sardar Khan) arose,
were instituted long before the advent of the Waqf Act, 1995 and hence
the ratio laid therein on the basis of Section 7(5) of the Act does not
throw any light upon the actual controversy on hand. The decision of
B
this Court in Ramesh Gobindram included at Sl.No.3 in the table above,
is the one, which, ironically, attempted to settle the controversy on hand,
but has produced conflicting results in the subsequent decisions. The
only question that arose in Ramesh Gobindram, as seen from paragraph
2 (of the SCC report), is as to whether or not, the Waqf Tribunal is
C competent to entertain and adjudicate upon disputes regarding eviction
of persons occupying what are admittedly waqf properties. For finding
an answer to this question, this Court started its discussion with the well
established rule that the ouster of jurisdiction of the civil court is not to
be readily inferred and that the bar of jurisdiction should be express or
implied. After laying such a foundation, this Court started building mainly
D
upon Sections 6 and 7. This was perhaps due to the caption given to
Sections 6 and 7. While Section 6 is given the caption, “Disputes
regarding waqfs”, Section 7 is given the caption “Power of Tribunal
to determine disputes regarding waqfs”. Sections 6 and 7 as they
stood when Ramesh Gobindram was decided, read as follows:-
E 6. Disputes regarding waqfs.—(1) If any question arises
whether a particular property specified as waqf property in the
list of waqfs is waqf property or not or whether a waqf specified
in such list is a Shia waqf or Sunni waqf, the Board or the
mutawalli of the waqf or any person interested therein may institute
F a suit in a Tribunal for the decision of the question and the decision
of the Tribunal in respect of such matter shall be final:
Provided that no such suit shall be entertained by the Tribunal
after the expiry of one year from the date of the publication of the
list of waqfs:
G Explanation.—For the purposes of this section and section
7, the expression “any person interested therein”, shall, in relation
to any property specified as waqf property in the list of waqfs
published after the commencement of this Act, shall include also
every person who, though not interested in the waqf concerned,
H is interested in such property and to whom a reasonable opportunity
RASHID WALI BEG v. FARID PINDARI & ORS. 33
[V. RAMASUBRAMANIAN, J.]

had been afforded to represent his case by notice served on him A
in that behalf during the course of the relevant inquiry under section
4.
(2) Notwithstanding anything contained in sub-section (1),
no proceeding under this Act in respect of any waqf shall be stayed
by reason only of the pendency of any such suit or of any appeal B
or other proceeding arising out of such suit.
(3) The Survey Commissioner shall not be made a party to
any suit under sub-section (1) and no suit, prosecution or other
legal proceeding shall lie against him in respect of anything which
is in good faith done or intended to be done in pursuance of this C
Act or any rules made thereunder.
(4) The list of waqfs shall, unless it is modified in pursuance
of a decision of the Tribunal under sub-section (1), be final and
conclusive.
(5) On and from the commencement of this Act in a State, D
no suit or other legal proceeding shall be instituted or commenced
in a court in that State in relation to any question referred to in
sub-section (1).
7. Power of Tribunal to determine disputes regarding
waqfs.—(1) If, after the commencement of this Act, any question E
arises, whether a particular property specified as waqf property
in a list of waqfs is waqf property or not, or whether a waqf
specified in such list is a Shia waqf or a Sunni waqf, the Board or
the mutawalli of the waqf, or any person interested therein, may
apply to the Tribunal having jurisdiction in relation to such property, F
for the decision of the question and the decision of the Tribunal
thereon shall be final:
Provided that—
(a) in the case of the list of waqfs relating to any part of
the State and published after the commencement of this G
Act no such application shall be entertained after the
expiry of one year from the date of publication of the
list of waqfs; and
(b) in the case of the list of waqfs relating to any part of
the State and published at any time within a period of H
34 SUPREME COURT REPORTS [2021] 13 S.C.R.

A one year immediately preceding the commencement of
this Act, such an application may be entertained by
Tribunal within the period of one year from such
commencement:
Provided further that where any such question has been
B heard and finally decided by a civil court in a suit instituted before
such commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason
of the provisions of sub-section (5), no proceeding under this
section in respect of any waqf shall be stayed by any court, tribunal
C or other authority by reason only of the pendency of any suit,
application or appeal or other proceeding arising out of any such
suit, application, appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party
to any application under sub-section (1).
D (4) The list of waqfs and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section (1), the
list as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine
any matter which is the subject-matter of any suit or proceeding
E instituted or commenced in a civil court under sub-section (1) of
section 6, before the commencement of the Act or which is the
subject-matter of any appeal from the decree passed before such
commencement in any such suit or proceeding or of any application
for revision or review arising out of such suit, proceeding or appeal,
F as the case may be.
31. A bare reading of Sections 6 and 7 extracted above, shows
that the language employed therein appears to have deflected the attention
of many a court without exception. The reason why we say so, is this. A
careful look at the scheme of the Act would show that the Act is divided
into 9 chapters. Chapter-II which contains Sections 4 to 8, is primarily
G
concerned with the survey of waqfs4. Sections 6 and 7 are incidental to
the scheme of Chapter-II alone, which is why they speak only about
two questions namely, (i) whether a particular property specified as a

4
The words “waqfs”, has been substituted with the word “auqaf”, by the Amendment
H Act 27 of 2013.
RASHID WALI BEG v. FARID PINDARI & ORS. 35
[V. RAMASUBRAMANIAN, J.]

waqf property in the list of waqfs is actually a waqf property or not; and A
(ii) whether a waqf specified in such list is a Shia waqf or Sunni waqf.
While Section 4 contemplates a preliminary survey of all waqfs in the
State, Section 5(2) speaks about publication of the list of waqfs
(separately for Shia and Sunni) in the official gazette. Since Sections 6
and 7 follow Sections 4 and 5, they refer only to the aforesaid two
B
questions. In other words, the questions relevant for the purposes of
Sections 4 and 5 alone, are dealt with in Sections 6 and 7 and hence the
discussion regarding the jurisdiction of the Waqf Tribunal should not start
and end with Sections 6 and 7.
32. Sections 83 and 85, as well as Sections 86, 90 and 93, which
use the word “court”, are to be found in Chapter VIII of the Act. The C
heading given to Chapter VIII is “Judicial Proceedings”. Therefore, for
finding an answer to the question relating to the bar of jurisdiction under
Section 85, it is not enough merely to refer to Section 6(5) or Section
7(2). The language of Section 85 is clearly in contrast to the language
employed in Section 6(5) and Section 7(2). D
33. A conjoint reading of Sections 6, 7 and 85 would show that the
bar of jurisdiction of civil court contained in Section 6(5) and Section
7(2) is confined to Chapter-II, but the bar of jurisdiction under Section
85 is all pervasive. This can be seen from the following distinguishing
features:- E
(i) Section 6(5) bars the institution or commencement of a suit
or other legal proceeding in a court “in relation to any question referred
to in sub-section (1)”. Sub-section (1) of Section 6 speaks only about
two questions namely, whether a particular property specified as a waqf
property in the list of waqfs is a waqf property or not and whether a F
waqf is Shia waqf or Sunni waqf;
(ii) Section 7(2) bars any court, tribunal or other authority from
staying any proceeding before the Waqf Tribunal, in respect of a waqf,
on the only ground of pendency of any suit, application or appeal or
other proceeding. Section 7(2) specifically relates to the proceedings G
under Section 7 and not to any other proceeding. This is clear by the use
of the words, “no proceeding under this Section”. Section 7(1) again
deals only with two questions namely, whether a particular property
specified as waqf property in the list of waqfs is a waqf property or not
and whether a waqf specified in the list is a Shia waqf or Sunni waqf.
Therefore, the bar under Section 7(2) is also confined only to these two H
36 SUPREME COURT REPORTS [2021] 13 S.C.R.

A questions, on account of the use of the words, “no proceeding under
this Section”.
(iii) While Sections 6(1) and 7(1) speak only about two questions
which are germane to the matters covered by Chapter-II of the Act
alone, Section 85 speaks (i) about any dispute, question or other matter
B relating to any waqf or waqf property and (ii) about “other matter
which is required by or under this Act to be determined by a Tribunal”.
(iv) A major distinguishing feature between Sections 6(1) and 7
(1) on the one hand and Section 83 on the other hand is that the dispute,
question or other matter referred to in Sections 6 and 7 are confined
C only to what is included in the list of waqfs prepared under Section 4 and
published under Section 5. The words “specified … in the list of waqfs”
found in sections 6 (1) and 7(1), are conspicuous by their absence in
section 83 (1). Therefore, it is clear that Sections 6 and 7 speak only
about two categories of cases, but Section 83 covers the entire gamut
of possible disputes in relation to any waqf or waqf property.
D
34. It is seen that there are 2 limbs to Section 85. The words,
“any dispute, question or other matter relating to any waqf or waqf
property” used in the first limb of Section 85, provide a clear indication
that the Tribunal would have jurisdiction to adjudicate upon any dispute
and answer any question relating to a waqf or waqf property, including
E the two questions mentioned in Sections 6(1) and 7(1). The words in the
second limb of Section 85 namely, “other matter which is required by
or under this Act to be determined by a Tribunal”, seek to cover
matters which have no relevance to the two questions covered by Section
6(1) and 7(1).
F 35. Unfortunately, many courts were misled by the reference to
two specific questions in Sections 6(1) and 7(1), to come to the conclusion
that the bar of jurisdiction was confined only to disputes revolving around
those two questions.
36. Interestingly, the basis of the decision in Ramesh Gobindram
G was removed through an amendment under Act 27 of 2013. As we have
stated elsewhere, Ramesh Gobindram sought to address the question
whether a Waqf Tribunal was competent to entertain and adjudicate
upon disputes regarding eviction of persons in occupation of what are
admittedly waqf properties. Since this Court answered the question in
the negative, Section 83(1) was amended by Act 27 of 2013 to include
H
RASHID WALI BEG v. FARID PINDARI & ORS. 37
[V. RAMASUBRAMANIAN, J.]

the words, “eviction of tenant or determination of rights and A
obligations of the lessor and lessee of such property”.
37. Simultaneously, sub-section (6) was inserted in Section 7 by
Act 27 of 2013. This sub-section (6) of Section 7 states that the Tribunal
shall have the power of assessment of damages by unauthorized
occupation of waqf property and to penalize such unauthorized occupants B
for their illegal occupation of the waqf property and to recover the
damages as arrears of land revenue through the Collector. It reads as
follows:
(6) The Tribunal shall have the powers of assessment of
damages by unauthorised occupation of waqf property and C
to penalise such unauthorised occupants for their illegal
occupation of the waqf property and to recover the damages
as arrears of land revenue through the Collector:
Provided that whosoever, being a public servant, fails in his
lawful duty to prevent or remove an encroachment, shall on D
conviction be punishable with fine which may extend to fifteen
thousand rupees for each such offence.
Ideally, the provisions of sub-section (6) should have found a place
somewhere in Section 83, since what is sought to be covered by sub-
section (6) of Section 7 has no correlation to the two questions about E
which Section 7(1) speaks. But the reason why the Parliament thought
fit to include something in Section 7, which has no correlation to sub-
section (1) of Section 7, is perhaps the fact that Ramesh Gobindram
turned primarily on the language of Sections 6 and 7.
38. The upshot of the above discussion is that the basis of Ramesh F
Gobindram now stands removed through amendment Act 27 of 2013.
In fact, when Ramesh Gobindram was decided, Sections 6(1) and 7(1)
enabled only three categories of persons to approach the Waqf Tribunal
for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii)
any person interested therein. However, the explanation under Section
6(1) clarified that the expression “any person interested therein” shall G
include every person, who, though not interested in the waqf, is interested
in the property. But by Act 27 of 2013 the words, “any person interested”
were substituted by the words, “any person aggrieved”, meaning
thereby that even a non Muslim is entitled to invoke the jurisdiction of
the Tribunal. Due to the substitution of the words “any person
H
38 SUPREME COURT REPORTS [2021] 13 S.C.R.

A aggrieved”, Act 27 of 2013 has deleted the Explanation under 6(1).
This amendment has also addressed the concern expressed in Ramesh
Gobindram (in para 21 of the SCC report) whether a non Muslim could
be put to jeopardy by the bar of jurisdiction, merely because the property
is included in the list of waqfs. We must point out at this stage that the
Explanation under sub-section (1) of Section 6, as it stood at the time
B
when Ramesh Gobindram was decided, already took care of this
contingency, but was omitted to be brought to the notice of this court.
39. Since Ramesh Gobindram, focused mainly upon the two
questions indicated in Sections 6(1) and 7(1) and reached a conclusion
that the Tribunal would have no jurisdiction to adjudicate upon disputes
C concerning properties which are admittedly waqf properties, some of
the decisions which followed Ramesh Gobindram took to the extreme
view that if a property is admitted to be a waqf property, by both parties,
the Waqf Tribunal would not have jurisdiction to adjudicate upon a dispute
concerning the said property. Such a conclusion led to an incongruity
D namely that the Tribunal would have jurisdiction to determine the larger
question whether a property is a waqf property or not, but not smaller
questions relating to what are admittedly waqf properties. Normally while
interpreting a clause relating to bar of jurisdiction of civil courts in statutory
enactments, this court would tend to think, depending upon the language
employed, that larger questions could still be decided by civil courts,
E while smaller questions are to be decided by the special Fora constituted
under the Act. But in the case of Waqfs Act, 1995, the reverse has
happened, with the courts ruling that if a property is admittedly a waqf
property, the Tribunal would have no jurisdiction, though it would have
jurisdiction to decide whether or not a property is a waqf property at all.
F 40. The distinction sought to be drawn on the basis of admission
or denial about a property being a waqf property, was also capable of
another mischievous result. Take for instance a case where a property
is disputed to be a waqf property. Then as per the decision in Ramesh
Gobindram, the Waqf Tribunal would have jurisdiction to decide the
G question whether it is a waqf property or not. Suppose the Tribunal reaches
the conclusion that the disputed property is a waqf property, would the
Tribunal then continue to have jurisdiction to grant relief or would it be
denuded of the jurisdiction, merely because the property was found to
be a waqf property ? This is a question for which no answer could be
found if we adopt the restrictive interpretation. This is why the subsequent
H
RASHID WALI BEG v. FARID PINDARI & ORS. 39
[V. RAMASUBRAMANIAN, J.]

decisions of this Court found an easy way out by distinguishing Ramesh A
Gobindram. For instance, the decision in Anis Fatma Begum
distinguished Ramesh Gobindram on the ground that Ramesh
Gobindram was confined to an eviction dispute and that the words “any
dispute, question or other matters” appearing in Section 83(1) are
words of wide connotation. Similarly, Akkode Jumayath Palli
B
Paripalana Committee, held a suit for permanent injunction to be
maintainable before a Waqf Tribunal, on the ground that Ramesh
Gobindram, was distinguished in Anis Fatma Begum. Likewise, the
ratio in Ramesh Gobindram was held in Kiran Devi to be incapable of
being invoked in a case where the original proceeding was first instituted
before the Civil Court and it was later transferred to the Waqf Tribunal, C
which order of transfer had attained finality.
41. Having seen the extent to which this Court followed or
distinguished Ramesh Gobindram in subsequent decisions and having
seen that the basis of Ramesh Gobindram now stands removed by Act
27 of 2013, let us now turn our attention to the “other matters”, which D
are required by or under the Act to be determined by the Tribunal. This
is for reason that the second limb of Section 85, as we have seen earlier,
bars the jurisdiction of any Civil Court, Revenue Court and any other
authority, in respect of any dispute, question or other matter which is
required by or under this Act to be determined by the Tribunal.
E
42. The various provisions of the Act which make a reference to
the Tribunal and the subject matter in relation to which such a reference
is made are presented in a tabular column as follows:-

F

G

H
40 SUPREME COURT REPORTS [2021] 13 S.C.R.

A

B

C

D

E

F

G

H
RASHID WALI BEG v. FARID PINDARI & ORS. 41
[V. RAMASUBRAMANIAN, J.]

A

B

C

43. In sum and substance, the Act makes a reference, to 3 types
of remedies, namely that of a suit, application or appeal before the
Tribunal, in respect of the following matters:-
(i) Any question or dispute whether a property specified as waqf D
property in the list of waqfs is a waqf property or not [Sections 6(1) &
7(1)];
(ii) A question or dispute whether a waqf specified in the list of
waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)];
E
(iii) Challenge to the settlement of a scheme for management of
the waqf or any direction issued in relation to such management [Section
32(3)];
(iv) Challenge to an order for restitution/restoration of the property
of the waqf or an order for payment to the waqf of any amount
F
misappropriated or fraudulently retained by the mutawalli [Section
33(4)];
(v) Conditional attachment of the property of a mutawalli or any
other person [Section 35(1)];
(vi) Challenge to the removal or dismissal of an Executive Officer G
or member of the staff [Section 38(7)];
(vii) Application by the Board, seeking an order for recovery of
possession of a property earlier used for religious purpose but later ceased
to be used as such [Section 39(3)];
H
42 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (viii) Challenge to a direction issued by the Board to any Trust or
Society to get it registered [Section 40(4)];
(ix) Challenge to an order for recovery of money from the
mutawalli, as certified by the Auditor [Section 48(2)];
(x) Challenge to an order for delivery of possession of a property
B issued by the Collector [Section 52(4)];
(xi) Application by the Chief Executive Officer for the removal
of encroachment and for delivery of possession of a waqf property
(Section 54(3)];

C (xii) Challenge to the removal of mutawalli from office [Section
64(4)];
(xiii) Challenge to an order superseding the Committee of
Management [Section67(4)];
(xiv) Challenge to the removal of a member of the Committee of
D Management [Section 67(6)];
(xv) Challenge to any scheme framed by the Board for the
administration of waqf, containing a provision for the removal of the
mutawalli and the appointment of the person next in hereditary succession
[Section 69(3)];
E (xvi) Challenge to an order for recovery of contribution payable
by the waqf to the Board, from out of the monies lying in a bank [Section
73(3)];
(xvii) any dispute, question or other matter relating to a waqf
{section 83(1)}
F
(xviii) any dispute, question or other matter relating to a waqf
property {section 83(1)}
(xix) eviction of a tenant or determination of the rights and
obligations of lessor and lessee of waqf property {section 83(1) after its
G amendment under Act 27 of 2013 }
(xx) Whenever a mutawalli fails to perform an act or duty which
he is liable to perform [Section 94].
44. If the Waqf Act, 1995 had merely stopped with a reference to
the matters listed above as capable of being adjudicated by the Tribunal,
H there would have been no scope for any confusion. But unfortunately,
RASHID WALI BEG v. FARID PINDARI & ORS. 43
[V. RAMASUBRAMANIAN, J.]

the Act makes a specific reference to court/civil Court also in certain A
places. We have already seen Sections 86, 90 and 93 making specific
reference to “Court”. Section 68(6) goes a step further by making a
reference to ‘civil court’ and it reads as follows:-
“68. Duty of mutawalli or committee to deliver possession
of records, etc.- B
(1) … … …
(2) … … …
(3) … … …
(4) … … … C
(5) … … …
(6) Nothing contained in this section shall bar the institution
of any suit in a competent civil court by any person aggrieved
by any order made under this section, to establish that he has
D
right, title and interest in the properties specified in the order
made by any Magistrate under sub-section (2)”
45. A combined reading of Sections 68(6), 86, 90 and 93 goes to
show that the bar of jurisdiction under Section 85 does not apply at least
to the following matters, covered by Sections 68(6), 86 and 90 :
E
(i) Whenever a District Magistrate passes an order directing the
removed mutawalli or removed members of a Committee of Management
to deliver possession of the records, accounts and properties of the waqf,
to the successor or successor Committee of Management, any person
claiming that he has right, title and interest in the properties specified in
the order so passed by the Magistrate can approach a civil court; F

(ii) The Board itself may approach a civil court either to set aside
the sale in execution of a decree of civil court, of an immovable property
which is a waqf property, or to set aside the transfer of any immovable
property made by the mutawalli without the sanction of the Board or to
recover possession of the property so sold or transferred, as the case G
may be;
(iii) The mutawalli is also empowered to approach the civil court
to recover possession of any immovable property which is a waqf property,
but which had been transferred by the previous mutawalli without the
sanction of the Board (this is implicit in Section 86); H
44 SUPREME COURT REPORTS [2021] 13 S.C.R.

A (iv) A waqf property can be brought to sale in execution of a
decree of a civil court or for the recovery of any revenue, cess, rates or
taxes due to the Government or any local authority, but such a proceeding
will be void if no notice thereof is given to the Board [this is implicit in
Sections 90(2) & (3)].
B 46. Thus the Act itself has created some confusion, leaving the
rest to the courts to compound the conundrum. Sadly, the Amendment
Act 27 of 2013 also did not address the problem fully.
The case on hand
47. Having thus seen the statutory scheme, including the confusion
C created seemingly or schemingly, let us now come back to the facts of
the case on hand. As we have seen in paragraph 3 above, the 1st
respondent herein filed a suit on the file of a civil court praying for the
following reliefs:-
(i) A mandatory injunction directing the defendants to remove the
D door and encroachment made by them behind the shops of the plaintiff
and to repair the broken back wall of the plaintiff’s shop; and
(ii) A perpetual injunction restraining the defendants from
interfering with the plaintiff’s possession of the property described therein.
48. Defendant No.1 who is the appellant herein filed a written
E
statement, admitting that Khasra Plot No.135/3 in respect of which
perpetual injunction was sought, was the property of Mirza Abid Ali Beg
and that it is a waqf property, of which Riyaz Ahmad was the mutawalli.
49. After admitting the property to be a waqf property, the appellant
herein (defendant no.1) filed an application under Order VII, Rule 11 on
F
the sole ground that a suit for injunction could be filed only before the
Waqf Tribunal. This application for rejection of plaint was allowed by
the Trial Court and the suit was dismissed. The first appellate court
confirmed the same but on a second appeal, the High Court set aside the
judgments of the Trial Court and the first appellate court with a direction
G to the Civil Court to proceed in accordance with law. The reasoning of
the High Court was that there was no dispute with regard to the property
being a waqf property or the nature of the property and that therefore
Civil Court will have jurisdiction. Curiously the High Court referred to
the decisions in Ramesh Gobindram and Anis Fatma Begum, but held
that all those decisions relied upon by the learned counsel for the
H Respondents were not fully applicable to the facts of the present case.
RASHID WALI BEG v. FARID PINDARI & ORS. 45
[V. RAMASUBRAMANIAN, J.]

50. The approach of the High Court, in our considered view, is not A
in tune with the law. The question as to whether the suit for perpetual
injunction is maintainable before the Waqf Tribunal or not, is already
answered in Akkode Jumayath Palli Paripalana Committee. This
Court, pointed out in the said decision that Ramesh Gobindram was
distinguished in Anis Fatma Begum, and that therefore the Tribunal had
B
jurisdiction to entertain a suit for perpetual injunction. But unfortunately,
this decision rendered by this Court on 23.07.2013 does not appear to
have been brought to the notice of the High Court.
51. It is true that in Punjab Waqf Board vs. Sham Singh Harike,
a two member bench of this Court considered Ramesh Gobindram,
Anis Fatma Begum as well as Akkode Jumayath Palli Paripalana C
Committee and doubted in paragraph 43 (of the SCC report) the
correctness of the decision in Akkode Jumayath Palli Paripalana
Committee on the ground that it was not in accord with the ratio of
Ramesh Gobindram. But the said conclusion was on the basis of the
observations in Ramesh Gobindram to the effect that unless there is D
any provision in the Waqf Act to entertain the dispute, the Tribunal cannot
have jurisdiction. The relevant portion of Paragraph 43 of Sham Singh
Harike reads as follows:-
“43. The two-Judge Bench of this Court in the above case held
the suit to be maintainable in the Waqf Tribunal and noted that the E
ratio of Ramesh Gobindram [Ramesh Gobindram v. Sugra
Humayun Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ)
553] has been distinguished in Anis Fatma case [W.B. Waqf
Board v. Anis Fatma Begum, (2010) 14 SCC 588 : (2012) 1 SCC
(Civ) 773]. But as per ratio of Ramesh Gobindram [Ramesh
Gobindram v. Sugra Humayun Mirza Waqf, (2010) 8 SCC 726 F
: (2010) 3 SCC (Civ) 553] unless there is any provision in the
Waqf Act, 1995 to entertain the said dispute only then the Waqf
Tribunal has jurisdiction, the suit filed for injunction was not
maintainable in the above case. Thus, what is held in the above
judgment by the two-Judge Bench is not in accord with the ratio G
of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun
Mirza Waqf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] .”
52. We have already seen that it is not as though there was no
provision in the Waqf Act conferring jurisdiction upon the Tribunal in
respect of the waqf property. We can break the first part of Section 83 H
46 SUPREME COURT REPORTS [2021] 13 S.C.R.

A into two limbs, the first concerning the determination of any dispute,
question or other matter relating to a waqf and the second, concerning
the determination of any dispute, question or other matter relating to a
waqf property. After Amendment Act 27 of 2013, even the eviction of a
tenant or determination of the rights and obligation of the lessor and
lessee of such property, come within the purview of the Tribunal. Though
B
the proceedings out of which the present appeal arises, were instituted
before the Amendment Act, the words “any dispute, question or other
matter relating to a waqf or waqf property” are sufficient to cover
any dispute, question or other matter relating to a waqf property. This is
why Ramesh Gobindram was sought to be distinguished both in Anis
C Fatma Begum and Pritpal Singh and such distinction was taken note of
in Akkode Jumayath Palli Paripalana Committee. Additionally, this
Court in Kiran Devi, refused to apply the ratio of Ramesh Gobindram,
on the ground that the suit was originally instituted before the Civil Court,
but was later transferred to the Waqf Tribunal and that after allowing
the order of transfer to attain finality, it was not open to them to resurrect
D
the issue through Ramesh Gobindram.
53. It is well settled that the court cannot do violence to the express
language of the statute. Section 83(1) even as it stood before the
amendment, provided for the determination by the Tribunal, of any dispute,
question or other matter (i) relating to a waqf; and (ii) relating to a waqf
E property. Therefore to say that the Tribunal will have jurisdiction only if
the subject property is disputed to be a waqf property and not if it is
admitted to be a waqf property, is indigestible in the teeth of Section
83(1).
54. In fact, Section 83(5) of the Act makes it clear that the Tribunal
F shall be deemed to be a Civil Court and shall have the same powers as
may be exercised by a Civil Court under the CPC, while trying a suit or
executing a decree or order. This is why this Court held in Syed Mohideen
and Another vs. Ramanathapura Peria Mogallam Jamath and
Others5 that the Waqf Tribunal will have power to issue temporary
G injunctions under Order XXXIX, Rule 1 CPC.
55. We must also point out at this stage that all the 14 decisions
which we have tabulated in paragraph 13 above, except the one at
Sl.No.13, namely Kiran Devi vs. Bihar State Sunni Waqf Board6, are
5
(2010) 13 SCC 62
6
H 2021 SCC Online SC 280
RASHID WALI BEG v. FARID PINDARI & ORS. 47
[V. RAMASUBRAMANIAN, J.]

decisions of two member benches. Kiran Devi was a decision of a A
three member bench of this Court. In Kiran Devi, an objection to the
maintainability of the proceeding before the Waqf Tribunal was raised
on the basis of the decision in Ramesh Gobindram. But this court refused
to accept it on the ground that once the order of transfer of the suit from
the Civil Court to the Waqf Tribunal had attained finality, the question of
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jurisdiction cannot be raised. If Waqf tribunal had no jurisdiction at all,
this court could not have held in Kiran Devi that the order of transfer
already passed cannot be undone by accepting this plea. The decision of
the three member bench in Kiran Devi is significant in the sense that it
recognized the fact that Ramesh Gobindram cannot be used as a magic
wand to toss the proceedings relating to a waqf property from one forum C
to another. The dichotomy created in some decisions of this court, between
the properties which are admitted to be waqf properties and properties
which are disputed to be so, is on account of the misapplication of the
two limited questions in Sections 6(1) and 7(1) to the whole of the Act
including section 83. At the cost of repetition we should point out that
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Section 83(1) provides for the determination of any dispute, question or
any other matter, (i) relating to a waqf and (ii) relating to a waqf property.
This prescription cannot be taken to have been curtailed or circumscribed
by Sections 6(1) and 7(1), to come to the conclusion that the Tribunal
will assume jurisdiction only when a property is disputed to be a waqf
property. E
56. In the case on hand, the property is admitted to be a waqf
property. Therefore, to allow the plaintiff to ignore the Waqf Tribunal
and to seek a decree of permanent injunction and mandatory injunction
from a civil court, would be ignore the mandate of section 83 and 85
which speak of any dispute, question or other matter relating to a waqf F
or a waqf property. There is also one more issue. In the written statement,
the Defendant No.1 has admitted the existence of the waqf and also
admitted that the father of the plaintiff by name Riyaz Ahmad is the
mutawalli. But the claim of the plaintiff that he is the beneficiary of the
waqf has been denied. Therefore, a question as to the nature of the
waqf and whether the plaintiff is a beneficiary of the waqf, has also G
arisen in this case. This question has necessarily to be decided by the
Tribunal and not the civil court.
57. In view of the above, the appeal is allowed and the judgment
and decree of the High Court are set aside. The trial court shall return
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48 SUPREME COURT REPORTS [2021] 13 S.C.R.

A the plaint to the plaintiff, for presentation to the jurisdictional Waqf
Tribunal. Since pleadings are complete, the Waqf Tribunal shall proceed
from the stage of framing of issues and dispose of the suit within a
period of 6 months. There will no order as to costs.

B Divya Pandey Appeal allowed.

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F

G

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